IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930 WP(C).No. 18295 of 2006(C) ---------------------------------------- PETITIONERS: --------------------- 1. SASI K., KATTIL HOUSE, CHORODE EAST P.O., VADAKARA VIA., KOZHIKODE-673 106. (SECURITY GUARD, GENERAL ADMINISTRATION DEPT., SECRETARIAT, TRIVANDRUM.) 2. BHASKARAN K.K., KIZHAKKEPARAMBIL, PANAYIKULAM P.O., ALANGAD VIA, DO. 3. SHAJAHAN A.K., S/O. ALIYARU KUNJU, KOYIKKALOTHU HOUSE, PAVUMBA P.O., MANAPPALLY NORTH, KOLLAM-690 574. -DO- 4. VIJAYAKUMAR S., DEVI KRIPA, VETTIKKAVALA P.O., KOTTARAKKARA, KOLLAM DISTRICT-691 538. -DO- 5. ALEXANDER P.K., PALAKKAL HOUSE, KANNAMALI P.O., KOCHI-08, -DO- 6. PRADEEPAN V.P., PRANAVAM HOUSE, PANANGAD P.O., VIA. BALUSSERY, CALICUT DISTRICT-673 612, -DO- BY ADV. SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN RESPONDENTS: ------------------------- 1. GOVERNMENT OF KERALA, GENERAL ADMINISTRATION DEPARTMENT, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. Kss ..2/- ...2..... WPC.NO.18295/2006 C 2. THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, POST TRIVANDRUM. 3. G.SASIDHARAKURUP, USHAS, KEEZPEROOR, PEROOR P.O., KILIMANOOR VIA, TRIVANDRUM. 4. RAJENDRAN, KATTUVIL HOUSE, VIZHATTINGAL P.O., ATTINGAL, TRIVANDRUM. 5. K.ABHIMANYU, N.G.O.QUARTERS, NO.16/181, MELARANNUR, KARAMANA, THIRUVANANTHAPURAM. 6. V.BHUVANENDRAN, RAJENDRAVILASOM, VITHURA P.O., NEDUMANGADU. 7. K.MOHANAN NAIR, PUTHUKULATHU VEEDU, KAPPIL P.O., EDAVA, TRIVANDRUM. 8. K.R.RAMACHANDRAN NAIR, RUGMINI MANDIRAM, PAYYATTUVILA P.O., BALARAMAPURAM VIA. 9. GOPALAKRISHNAN V., MELEPLAVARATHALA HOUSE, THAMALAM, POOJAPPURA P.O. 10. K.MADHAVAN, AANANDA BHAVAN, AZHAKIKONAM, VATTAVILA P.O., THIRUVANANTHAPURAM. 11. C.R.JAYAN, MUNDAKKAL HOUSE, KARAKULAM P.O., NEDUMANGADU, THIRUVANANTHAPURAM. 12. MANOJ K. PILLAI, T.C.20/1609, AROMA, SASTHRI NAGAR, KARAMANA, THIRUVANANTHAPURAM. 13. P.S.SHAFI, PANATHIL HOUSE, PANTHAVILA, NEDUMANGADU P.O., TRIVANDRUM. Kss ...3/- ...3.... WPC.NO.18295/2006 C 14. G.SOMAN, SHOBHA BHAVAN, PARAPPOTTA, KUTHEPUZHA P.O., ARAMADA, THIRUVANANTHAPURAM. 15. R.RANGANATHAN, KEEZHEKOLLAM VILAKAM, THIRUVANANTHAPURAM. 16. PADMALOCHANAKURUP, KRISHNAVILAS, MEENMUTTY P.O.,PACHA, TRIVANDRUM. 17. S.SURESH KUMAR, K.S.SADANAM, VENPAKAL P.O., NEYYATTINKARA. 18. D.SURESHKUMAR, THULASI BHAVAN, T.P.ROAD, PLAMOODU, TRIVANDRUM. 19. R.RADHAKRISHNAN, PARVATHY NILAYAM, THOTTVARAM, ATTINGAL. 20. N.GOPALAKRISHNAN NAIR, K.L.NILAYAM, MUNDOLA, TRIVANDRUM. 21. M.FASALUDHEEN, KALLADICHAVILA HOUSE, AYYRUPPARA, THUNDATHIL P.O., TRIVANDRUM. 22. S.SUNILKUMAR, KOCHUPAVODU HOUSE, KODUNGANNUR P.O.,TRIVANDRUM. 23. V.K.THAMPI, KAMALA BHAVAN, T.C.7/1694, SREECHITHRA NAGAR, PANGODU, THIRUMALA P.O., TRIVANDRUM. 24. C.VIJAYAN ACHARI, BABY SADANAM, POOZHIKKUNNU, INDUSTRIAL ESTATE, PAPPANAMCODE,TRIVANDRUM. 25. K.VASUDEVAN NAIR, MULLASSERY HOUSE, CHERUNNIYOOR P.O., VARKALA, TRIVANDRUM. BY ADV. SRI.T.A.SHAJI – R3,5,7,9,12,14,15,21 & 23 SMT.T.V.NEEMA - R3,5,7,14,15,21 SRI.M.K.CHANDRA MOHANDAS – R11 SRI.ALEXANDER THOMAS, SC, PSC - R2 BY SR.GOVERNMENT PLEADER SRI. NANDAKUMAR - R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.18295/2006 C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF RANK LIST OF THE SELECTED CANDIDATES. EXT.P2: COPY OF ORDER OF THE 1ST RESPONDENT DTD. 16/11/02. EXT.P3: COPY OF ORDER OF THE 1ST RESPONDENT DTD. 8/04/05. EXT.P4: COPY OF LETTER OF THE 2ND RESPONDENT DTD. 7/05/05. EXT.P5: COPY OF PORTION OF THE PAY COMMISSION REPORT. EXT.P6: COPY OF REPRESENTATION BY THE PETITIONERS TO THE 1ST RESPONDENT DTD. 15/12/05. EXT.P7: COPY OF SENIORITY PREPARED BY THE 1ST RESPONDENT WHICH WAS PUBLISHED AS ON 20/1/06 IN THE GAZETTE DTD. 21/11/96. /TRUE COPY/ P.A.TO JUDGE Kss V.GIRI, J ------------------- W.P.(C).18295/2006 -------------------- Dated this the 2nd day of June, 2008 JUDGMENT On 8.4.2003, 59 vacancies in the post of Security Guards were reported to the PSC. The Commission commenced the selection process and on 31.3.2005, it published Ext.P1 rank list. Petitioners were included in the rank list and going by their rank, they were ultimately advised and appointed as Security Guards. Contesting respondents were also included in the rank list, but they did not secure a rank sufficient to secure an advise for appointment. But such contesting respondents were originally appointed as Security Guards on a provisional basis or sometimes on a casual basis and many of them were continuing so, for several years. Apparently, even before the PSC had commenced its selection process, they had moved the Government for regularization of their services. But by Ext.P2 order dated 16.11.2002, the same was rejected taking note of the fact that as per G.O.(P). 272/2002 dated 13.8.2002, Special Rules had been promulgated for the post in question and as a matter of W.P.(C).18295/2006 2 fact, 30 vacancies had been reported in the year 1997 and 14 vacancies in 2000. By Ext.P2 order, while rejecting the request for regularization of their services, the Government had permitted the provisional employees to continue on daily wages, till the PSC hands report for duty. Apparently, many of them had approached this Court in Writ Petition No.36917/2003. Subsequent to Ext.P2 order, steps were taken by the PSC to conduct a regular selection to the vacancies which had already been reported. This Court by judgment dated 19.1.2004, found that there is nothing illegal in the steps taken by the PSC nor was there anything irregular or unjustifiable in the vacancies having been reported. The said writ Petition was disposed of permitting the petitioners to pursue the representation before the Government. 2. As noted above, 59 vacancies had been reported to the PSC at the point of time when it had commenced the selection process. Rank list was published on 31.3.2005. It seems that after the publication of the rank list, the W.P.(C).18295/2006 3 Government proceeded to withdraw the request in respect of 30 vacancies and simultaneously proceeded to pass an order regularizing the services of 23 Security Guards. Such persons were regularized under Ext.P3 with effect from 8.4.2005. Petitioners challenge Ext.P3 order on several grounds. 3. What was originally challenged in the writ petition was essentially the seniority being given to the contesting respondents over the petitioners. That is to say, pursuant to Ext.P3, the contesting respondents were treated as regularized in service, with effect from 8.4.2005. Petitioners were advised by the PSC and subsequently appointed as well. By the time the petitioners were advised, Ext.P3 order of regularization had already been issued and therefore, the seniority of the petitioners in the category of Security Guards came to be reckoned with effect from the date of first effective advice to the post. It therefore, came about that the petitioners were being treated as juniors in the post of Security Guards vis-a-vis, the contesting respondents W.P.(C).18295/2006 4 who are being considered as having commenced their regular service in the post of Security Guards with effect from 8.4.2005. I take note of the fact that a challenge against Ext.P3 order came to be noted only by way of an amendment petition filed about after the institution of the writ petition. 4. Counter affidavits have been filed by the Government as also by the contesting respondents. 5. I heard learned senior counsel for the petitioners Sri.M.C.Sen, the learned senior Government Pleader Mr.Nandakumar and Mr.T.A.Shaji, learned counsel appearing for the contesting respondents. 6. It is contended on behalf of the petitioners that the withdrawal of the requisition made to the PSC during the currency of the rank list, which in fact enabled the Government to regularize the services of the contesting respondents, is illegal and unconstitutional. Regularization of daily wage employees in the posts W.P.(C).18295/2006 5 which came within the purview of the PSC, is unconstitutional, it is contended. Reference is made to the judgments of the Supreme Court in E.Ramakrishnan and Others v. State of Kerala and Others (1996 (10) SCC 565) and P.Ravindran and Others v. Union Territory of Pondicherry and Others (1997 (1) SCC, 350). It is further contended that even if the Government is empowered to pass an order of regularization under Rule 39 of Part-II of K.S. & S.S.R, the power cannot be used to provide a back door measure for avoiding regular recruitment to the PSC merely on the pretext that temporary hands have been continuing for long in the absence of PSC hands. Reference is made in this regard to the judgment of this Court in Eranakulam District PSC Last Grade Servants Rank Holder's Association v. Chief Secretary to Government (2001 (3) KLT SN page 42, Case No.57). 7. It is further contended that even if for a moment it is assumed that Government had not acted illegally in W.P.(C).18295/2006 6 passing an order of regularization, such an order should have been made subject to the rights of those persons who are included in the rank list and who are advised there from. The decision in Renjeev v. State of Kerala (2000 (3) KLT 871) is relevant in this context. 8. Learned senior Government Pleader Mr.Nandakumar submits that the power of the Government under Rule 39 of Part-II of K.S. & S.S.R is wide enough to comprehend an order in the nature of Ext.P3. Mr.T.A.Shaji points out that since the petitioners have been advised and appointed, they are not really persons aggrieved by Ext.P3 which is an order of regularization. If at all, any person who might have been included in the list but was not able to secure an advise or appointment, may have been aggrieved by the order of regularization. But that is not the case of the petitioners who have, notwithstanding Ext.P3, been advised and appointed. W.P.(C).18295/2006 7 9. The first question to be considered is whether Ext.P3 order of regularization is in any manner illegal. No doubt, the judgments of the Supreme court referred to by the learned senior counsel support the contention that an order of regularization ought not to be passed ignoring as it were the rules regulating appointment on a regular basis. But what seems to be the distinguishing feature, in so far as the present case is concerned, is the existence of a residuary power with the Government in the nature of Rule 39 of the Rules, enabling it to be exercised in appropriate cases. The reasons given in Ext.P3 cannot be considered as irrelevant or otherwise of no consequence. Contesting respondents had crossed the age of 50 and they were appointed on various dates between 1993 and 2000. They have obviously crossed the age of entry into Government service and therefore, if on humanitarian consideration, the Government has deemed it appropriate to regularize them in service, it cannot be said to be the exercise of power that is so arbitrary as to warrant interference by this Court under Article 226 of the Constitution of India. Findings of this W.P.(C).18295/2006 8 Court in Renjeev’s case as to the broad nature of power available to the Government under Rule 39, supports the case of the learned Government Pleader and Mr.Shaji. For all the reasons which are mentioned above, I do not think that the order of regularization by itself can be branded as unconstitutional or illegal. 10. There is yet another reason for which I do not consider it appropriate to intervene with Ext.P3, in so far as it relates to the order of regularization. After all, petitioners have been advised and appointed consequently. The order by which the contesting respondents have been regularized in service had really no impact on their entry into Government service as such. In that view of the matter, petitioners may not have a locus standi to challenge Ext.P3 order in so far as it has regularized the services of the contesting respondents. I make this observation in the context of the fact that the order of regularization as such did not have the potential of affecting the petitioners’ advise by the PSC or their entry into Government service. W.P.(C).18295/2006 9 11. Learned senior counsel Mr.Sen submits that the contesting respondents were regularized in service only because the Government had withdrawn 23 vacancies from the requisition which had already been made to the PSC. Had it not been done, there would have been no vacancies to accommodate the provisional appointees. Learned counsel further submitted that if the Government thought it fit to withdraw the requisition, it should have been done in such a manner as to avoid any prejudice to the claims of those persons who are included in the rank list and who otherwise stand the chance of being considered for advise and appointment by enforcement of the rank list. In other words, according to him, assuming that the Government has the power to order regularization, it should have been done in such a manner as to make it subject to the claim of persons like the petitioners who are included in the rank list and who have otherwise been appointed by enforcement of the rank list. W.P.(C).18295/2006 10 12. I find considerable force in the submission. Assuming that the Government had not acted illegally in ordering the regularization of the services of the contesting respondents, going by the fact that the power exercised by the Government is an extraordinary one and therefore, ought to be exercised only in public interest, Government should have borne in mind the necessity to obviate any prejudice to those persons who are included in the rank list and who would therefore, be appointed by enforcement of the list as such. What has to be borne in mind is the fact that the selection to the post in question came within the purview of the PSC in the year 1996. A perusal of Ext.P2 order will show that 44 vacancies were reported even by 2000. 59 vacancies came to be reported altogether by 2003. Regular recruitment to the post can only be with the junction of the PSC. Even if the inclusion of a person’s name in the list by itself does not confer any indefeasible right on him, the person who is included in such list is entitled to insist that the available vacancies in the post in question must be filled up by enforcement of the rank W.P.(C).18295/2006 11 list. Normal method of appointment to the post having been laid down by the Rules in question, if the Government decided to bypass the same, may be for reasons which otherwise do not warrant interference by this Court, in my view, the Government should nevertheless, have made it clear that the extraordinary measure of regularization of the services of adhoc, daily wages or provisional employees should be without prejudice to the rights of those persons who are included in the rank list and who therefore, stand the chance of being appointed in the post in question by enforcement of the rank list. Since it is the petitioners who have approached this Court challenging Ext.P3, I do not think it is necessary to consider the same from the angle of interfering with the order of regularization as such. But I am of the view that there has been illegality and impropriety on the part of Government while issuing Ext.P3, by not subjecting the order of regularization to the claims of those persons, who are advised and appointed by enforcement of Ext.P1 rank list. W.P.(C).18295/2006 12 13. A consequence of this would be that beneficiaries of the order of regularization would be entitled to claim regularization, no doubt. But, they would be entitled to claim seniority in the post only subject to the claims of persons like the petitioners who entered service by securing advice and appointment, that is by enforcement of the rank list as such. 14. For all these reasons, writ petition is allowed in part. While upholding Ext.P3 order of regularization, it is made clear that respondents 3 to 27 shall be given seniority in the post of Security Guards only after the persons who were appointed as Security Guards on regular advise by the PSC and appointment thereby. This declaration shall be taken note of by the Head of the Department in finalizing Ext.P7 rank list. V.GIRI, Judge mrcs