Information Kerala Mission And Anr vs Murukadas R. Murukavilasom And Ors

Shaffique, J

The Information Kerala Mission and its Executive Director have preferred this appeal challenging judgment dated 7/1/2020 in WP(C)

No.36595/2018. The writ petition was filed by respondents 1 to 10 seeking for a direction to command the 2nd appellant herein to appoint them in the

available vacancies existing in the appellant organisation in compliance with Ext.P4 order of the State of Kerala. By Ext.P4, the Government had

directed filling up of 76 posts in the first appellant organization from among the candidates who were engaged on daily wages basis in various

Municipalities to carry out the data entry works. The appellants herein objected to the above request. According to them, the petitioners were persons

who were selected by them as temporary daily wages staff on the directions of the Government to carry out computerisation of Municipalities. The

duty was data entry and master collection at the Municipalities. According to them, since the petitioners were recruited on behalf of the Municipalities

and payment was made to them from the funds of the Municipalities, they cannot be ordered to be regularized with the first appellant establishment. It

is for the petitioners to approach the Municipalities for regularization, if any. It is further submitted that pursuant to judgment in WP(C) No.4437/2015,

the 2nd appellant had rejected the request made by the petitioners to reengage them in service, against which they filed WP(C) No. 31809/2015 and

the Government was directed to consider the representation. According to them, they have requested the Government to recall Ext.P4 order as per

letter dated 19/11/2018 [Ext.R3(d)]. Reminder was sent on 26/11/2018 and at that stage, the writ petition was filed.

Learned Single Judge found that Government having issued Ext.P4 order, the 2nd appellant is bound to issue orders in obedience with the same and

accordingly, the appellants were directed to implement Ext.P4.

Learned counsel for the appellants has placed reliance on the judgments of the Apex Court in State of Karnataka v. Umadevi [(2006) 4 SCC 1],

Union of India v. Vartak Labour Union [(2011) 4 SCC 200] and Union of India and others v. All India Trade Union Congress and Others [(2019) 5

SCC 773]. The principal argument of the appellants is that all the persons covered by Ext.P4 were not their employees. They have selected them on a

temporary basis and they were deputed to the Municipalities for carrying out certain data entry works. They were paid from the funds of the

Municipality and at no point of time, there was any employer-employee relationship between the first appellant establishment and the petitioners.

Primarily we are of the view that the very principle of directing employment of part time employees is illegal especially in the light of the judgment

of the Apex Court in Umadevi (supra). If at all any person has been employed on a daily wage basis or on contractual basis, after the judgment in

Umadevi (supra), they cannot claim any regularization and no Court or Tribunal can direct such persons to be regularized. If the Government attempts

to go ahead with such regularization, it would also amount to violation of the law laid down by the Constitution Bench in Umadevi (supra). When

persons who have not been selected on the basis of a due process of selection are regularized, it would amount to violation of Art.14 of the

Constitution of India vis-a-vis persons who are qualified and unemployed are concerned. It is in the said circumstances that the Apex Court had

directed that such a procedure for regularization of casual labours is illegal and shall not be done in future. In fact, the Apex Court had only given a

one time permission to the appropriate Government to prepare a list of employees who were employed on casual basis against sanctioned posts to be

regularized. Once such a measure had been adopted, the Government is not under obligation or rather the Government cannot in future direct such

regularization. Even in Vartak Labour Union (supra), the Apex Court having relied upon the judgment in Umadevi (supra), held that even employment

as a casual labour for 20 to 30 years under the same employer by itself is not sufficient to sustain a claim for regularization. In All India Trade Union

Congress (supra) also, a similar view had been taken.

The writ petition has been filed to implement Ext.P4. A bare reading of Ext.P4 itself would show that none of the persons who were engaged for

carrying out the data entry works in the Municipalities were under the employment of the first appellant organization. They were paid by the

concerned Municipalities. There is nothing in Ext.P4 to indicate that they were selected by a due process of selection and their engagement was in

respect of sanctioned posts. This Court can direct implementation of an order only if it is found to be an order passed in accordance with law. Even an

order of regularization to be implemented requires to be scrutinized in order to find out whether any legal right will flow from the said order. If the

order itself is against a settled principle of law by a Constitution Bench of the Apex Court, the courts have to refrain from implementing such orders.

Learned Single Judge therefore committed error in directing implementation of Ext.P4 as the said order itself is against the law laid down by the Apex

Court.

In the result, this appeal is allowed setting aside the judgment of the learned Single Judge and the writ petition stands dismissed.