P. Manoj Nair vs The Principle Secretary to Government, The Director, Institute of Management, The Regional Director, Regional Centre and The Institute of Management

T.R. Ramachandran Nair, J.—Petitioner is aggrieved by the order, Ext.P8, whereby the request to regularize the petitioner''s service as Gardner under the 3rd respondent has been rejected by the Government.

The petitioner was initially appointed as Gardner on 19/09/1995 and has been continuing on daily wages thereafter. The petitioner had been moving various authorities seeking regularization and by Ext.P2 judgment dated 24/11/2005 in WP(C) No. 14170/1999, his claim was directed to be considered, which was rejected as per Ext.P3 order. Later the petitioner moved the Chief Minister challenging Ext.P3. The request was forwarded to the 4th respondent and the 4th respondent by Ext.P5 intimated the Government that they are ready to absorb the daily waged employees if the Government accords sanction for the same on humanitarian considerations. Ext.P6 is a further representation, which was also directed to be disposed of by Ext.P7 judgment.

In Ext.P8 order, it is mainly pointed out that the petitioner was appointed on daily wages and the Government have also decided to bring all appointments in the IMG within the purview of the Kerala Public Service Commission, as per notification dated 18/02/2008.

Learned Counsel for the petitioner submitted that the judgment Ext.P7, in paragraph 2, directs the Government to consider the representation, keeping in mind, the observations of the Supreme Court in paragraph 53 of the judgment in Secretary, State of Karnataka and Others Vs. Umadevi and Others, . In the operative portion of the judgment also, the same directions have been issued. It is pointed out that a reading of Ext.P8 order will show that the Government has not considered the same, as is evident from paragraph 3 of the order.

On a reading of the order Ext.P8, it is evident from para 3, that the Government was of the view that the petitioner is not entitled to get regularization in the light of the directions in Umadevi''s case, as he was appointed purely on daily wage basis.

For easy reference, paragraph 53 of the judgment of the Apex Court in Umadevi''s case is extracted below:

One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan 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 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.

Evidently, the Apex Court was considering cases of regularization of employees, who have completed ten years in service, and their regularization was directed as a one-time measure. The cases, which were directed to be considered stand on a different footing. Merely because the petitioner was appointed on daily wages, that cannot be a ground to reject consideration of the matter in the light of the principles in Umadevi''s case.

Learned Government Pleader submitted that the Government had passed an order in the year 2002 refusing to regularize provisional employees in various services, and therefore the same principle applies as far as the petitioner is concerned. It is further pointed out that since the Kerala Public Service Commission is entrusted with the function to make regular appointments, the petitioner is not entitled for regularization. But these aspects cannot absolve the Government from considering the issue in the light of the directions issued in Ext.P7 judgment to consider his case in the light of paragraph 53 of the judgment in Secretary, State of Karnataka and Others Vs. Umadevi and Others, .

In that view of the matter, Ext.P8 is set aside, and there will be a direction to the Government to reconsider the matter, and appropriate orders will be passed after hearing the petitioner, within a period of four months of receipt of a copy of this judgment.

This writ petition is disposed of as above.