Disposed

Shakeela Beevi v. State of Kerala

Kerala HC2 Dec 2014WP(C)/15795/2014

Case brief

AI extract

What is this about?

Competing claims of Anganwadi recruitment applicants and temporary appointees required comprehensive consideration before regularisation instructions could be enforced. The court held the earlier Division Bench judgment binding as precedent but not a mandate to regularise. It disposed of the petition, withholding enforcement of Exhibit P7 pending determination of both groups' claims.

What did the court decide?

Exhibit P7 cannot be enforced until authorities comprehensively determine the competing claims of recruitment applicants and temporary appointees; regularisation must follow the governing policy.

Shakeela Beevi Vs State of Kerala — Service and Employment | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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TUESDAY, THE 2ND DAY OF DECEMBER 2014/11TH AGRAHAYANA, 1936

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WP(C).No. 15795 of 2014 (Y)

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PETITIONER(S):

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1. SHAKEELA BEEVI, KATTOOR VADAKKATHIL, CHITTUMOOLA,

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KADATHOOR P.O., THAZHAVA, KOLLAM.

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2. MAYADEVI V., AGED 35 YEARS, D/O. ANANTHAN PILLAI, MAYA BHAVANAM,

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PAVUMBA NORTH,PAVUMBA P.O., PIN-690 574.

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BY ADVS.SRI.V.PHILIP MATHEW

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SRI.JEPH JOSEPH

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RESPONDENT(S):

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1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, SOCIAL WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2. THE DIRECTOR, SOCIAL WELFARE DEPARTMENT, THIRUVANANTHAPURAM-695 001.

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3. THE DISTRICT SOCIAL WELFARE OFFICER, OFFICE OF THE SOCIAL WELFARE DEPARTMENT, KOLLAM-691 001.

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4. THE PROJECT OFFICER, INTEGRATED CHILD DEVELOPMENT SERVICE SCHEME (ICDS), OACHIRA, KOLLAM-690 526.

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5. THE OACHIRA BLOCK PANCHAYATH, REPRESENTED BY ITS SECRETARY, OACHIARA, KOLLAM-690 526.

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6. THE THAZHAVA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, THAZHAVA, KOLLAM-690 523.

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7. SMITHA NAIR, D/O. SANTHAMMA, RESIDING AT VANIYATH MEENATHIL, KUTHIRAPPANTHI P.O., THAZHAVA, KOLLAM-690 523.

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2/-

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-2-

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WP(C).NO.15795/2014

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8. JYOTHILAKSHMI,D/O. RAJAMMA, RESIDING AT MUNDAPPALLIL (NADATHANS) SRPM P.O., THAZHAVA, KOLLAM-690 523.

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*ADDL.R9 TO R43 IMPLEADED

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*Addl.R9. SREELATHA.S., AGED 42 YEARS, W/O.BABUKUTTAN PILLAI, PEEYADETHU PAVITHRAM, SRP MARKET.P.O., THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R10. VIMALA.T., PADMALAYAM, MANAPPALLY NORTH.P.O., THAZHAVA,KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R11. PREETHA.K., KUTTIYIL, PAVUMBA NORTH.P.O., THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R12. RENJITHA.S. VALIYATHU, SRP MARKET.P.O., THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R13. BINDU.S., THOPPIL KIZHAKKATHIL, SRP MARKET.P.O, THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R14. RENJINI.P., DAIVATHUMVATHUKKAL, KUTHIRAPANTHY.P.O., THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R15. MINIMOL, ASWATHY BHAVANAM, MANAPPALLY NORTH.P.O., THAZHAVA,KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R16. SARASWATHY.S., SARASWATHY BHAVANAM, PAVUMPA.P.O., THAZHAVA,KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R17. JAYASREE.P., LEKSHMI BHAVANAM, PAVUMPA.P.O., THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R18. SUNITHA.R., AJITHA BHAVANAM, PAVUMPA NORTH, THAZHAVAM, KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R19. REKHA.S., AJITH BHAVANAM, PAVUMPA NORTH.P.O., THAZHAVA,KARUNAGAPPALLY TALUK, KOLLAM.

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3/-

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-3-

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WP(C).NO.15795/2014

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*Addl.R20. KRISHNA KUMARI, THATTARETHU HOUSE, PAVUMPA NORTH.P.O., THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM.

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**Addl.R21. SINDU.D., AJI BHAVANAM, PAVUMPA SOUTH.P.O., THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM. Addl.R22. RETNAKUMARI AMMA, PANAYAMCHERIL, SRP MARKET.P.O., THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM.

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*** Addl.R23. NISHA.R., KANDATHIL, SRP MARKET P.O., THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM. Addl.R24. LIJI RAICHEL, THAZHAMANGALATHU HOUSE, SRP MARKET.P.O., THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM. * Addl.R25. ANJANA.S., KOTTARATHIN VILA, SRP MARKET.P.O., THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM. Addl.R26. SAJITHA.S., PANAYAMCHERI KIZHAKKATHIL, SRP MARKET.P.O., THAZHAVA,KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R27. SHAIJAMOL.K., KOCHUVILAYIL, SRP MARKET.P.O., THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R28. SHAJITHA.E., ANSAR MANZIL, S.W. THAZHAVA, KARUNAGAPPALLY TALUK,KOLLAM.

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*Addl.R29. JAYASREE.K.C., PANAYIL PADEETTATHIL, MANAPPALLY NORTH, THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R30. USHAKUMARI.L., PANACKATHEKKATHIL, SRP MARKET P.O., THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R31. SHAMEENA, THOPPIL KIZHAKKAIL, SRP MARKET P.O., THAZHAVA,KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R32. MANJU.S., MOOSSARITHARAYIL, MANPPALLY.P.O., THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM.

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4/-

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-4-

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WP(C).NO.15795/2014

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*Addl.R33. SAJEETHA, SAJEELA MANZIL, SRP MARKET.P.O., THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R34. SAJEELA, SAJEELA MANZIL, SRP MARKET ROAD, THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R35. PODIYAMMA, KOCHU KIZHZKKATHIL, PAVUMPA SOUTH.P.O., THAZHAVA,KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R36. LEELAMANY.B., PAIKKALIVILAYIL, PAVUMPA NORTH.P.O., THAZHAVA,KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R37. PRAMEELA.O., KALATHIL, THAZHAVA.P.O., KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R38. BINDU.G., AVANI BHAVANAM, THAZHAVA.P.O., KARUNAGAPPALLY TALUK,KOLLAM.

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*Addl.R39. AMBILY.S., ARUN BHAVAN, S.R.P.M.P.O., THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R40. PRASANNA, VALIYAVEETTITHARAYIL, MANAPPALLY.P.O., THAZHAVA,KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R41. PADMAKUMARI, PARAPPURATHU MEKKY, SRP MARKET.P.O., THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R42. REMADEVI, PARANGAM VILAYIL, PAVUMPA (N).P.O., THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM.

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*Addl.R43. AMBIKA, PULIMOOTTIL, SRPM .P.O., THAZHAVA, KARUNAGAPPALLY TALUK, KOLLAM.

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*ADDL. R9 TO R43 ARE IMPLEADED AS PER ORDER DATED 28/08/2014 IN IA.NO. 11600/2014.

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**ADDL.R44 & R45 IMPLEADED

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**Addl.R44. SUJA ANIL,AGED 37 YEARS, W/O ANIL KUMAR, RESIDING AT : "SUJA NIVAS", THAZHAVA NORTH, MANAPPALLY P.O., KOLLAM DISTRICT - 690 574.

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5/-

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-5-

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WP(C).NO.15795/2014

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**Addl.R45. NASEERA.S., AGED 33 YEARS, W/O ISMAIL, RESIDING AT PUTHEN PURAYIL, MANAPPALLY P.O.,KOLLAM DISTRICT - 690 574.

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**ADDL.R.44 & ADDL.R.45 ARE IMPLEADED AS PER ORDER DATED 10.10.2014 IN I.A.NO.11976/2014.

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R1 TO R4 BY GOVERNMENT PLEADER SMT. LOWSY.A. R6 BY ADV. SRI.B.SURESH KUMAR SMT.C.B.ANUROOPA R8 BY SRI.N.N.SUGUNAPALAN,SENIOR ADVOCATE ADV. SRI.T.C.SURESH MENON SRI.P.S.APPU ADDL.R9 TO R43 BY ADV. SRI.T.H.ABDUL AZEEZ SRI.K.V.VASAVAN SRI.UNNIKRISHNAN.S.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).No. 15795 of 2014 (Y)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 : COPY OF THE NOTIFICATION DTD. 27.1.2004 ISSUED BY 3RD RESPONDENT.

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P2 : COPY OF G.O(ORDINARY)NO.449/2007, SOCIAL WELFARE DEPARTMENT, DTD. 22.9.2007.

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P3 : COPY OF G.O(ORDINARY) NO.549/07 SOCIAL WELFARE DEPARTMENT DTD. 30.11.2007 RELYING ON JUDGMENT IN WPC NO.18571/07.

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P4 : COPY OF THE JUDGMENT IN WPC NO.18571/07 DTD. 10.10.2007.

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P5 : COPY OF THE JUDGMENT IN WPC NO.2744/08 AND CONNECTED CASES DTD. 8.12.2011.

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P6 : COPY OF THE JUDGMENT DTD. 10.2.2014 IN WA NO.431 OF 2012.

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P7 : COPY OF LETTER DTD. 20.3.2014 FROM THE 2ND RESPONDENT TO THE 4TH RESPONDENT.

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P8 : COPY OF G.O(MS)NO.2/2007, SOCIAL WELFARE DEPARTMENT, DTD. 6.1.2007.

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P9 : COPY OF THE REPRESENTATION DTD.2.6.14 SUBMITTED TO THE 1ST RESPONDENT (ADDRESSED TO SECRETARY, SOCIAL WELFARE DEPARTMENT).

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P10: COPY OF THE REPRESENTATION DTD. 2.6.14 SUBMITTED TO THE SECOND RESPONDENT.

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P11: COPY OF THE 4 POSTAL RECEIPTS DTD. 3.6.2014 TO SHOW THAT REPRESENTATIONS DTD. 2.6.14 WERE DESPATCHED.

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P12: COPY OF THE POSTAL ACKNOWLEDGMENT CARD SIGNED BY THE SECRETARY, SOCIAL WELFARE DEPARTMENT.

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P13: COPY OF THE POSTAL ACKNOWLEDGMENT CARD SIGNED BY THE 3RD RESPONDENT.

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P14: COPY OF POSTAL ACKNOWLEDGMENT CARD SIGNED BY 4TH RESPONDENT.

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P15: COPY OF THE G.O(MS)NO.74/2012 SOCIAL JUSTICE DEPARTMENT DATED, THIRUVANANTHAPURAM, DTD. 22.12.2012.

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RESPONDENT(S)' EXHIBITS

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R8(A) COPY OF THE GUIDELINES ISSUED BY THE 1ST RESPONDENT IN REGARD TO REGULARIZATION OF ANGANWADI WORKERS/HELPERS DATED 11/10/2006

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2/-

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WP(C).NO.15795/2014

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R8(B) COPY OF THE GUIDELINES ISSUED BY THE 1ST RESPONDENT IN REGARD TO REGULARIZATION OF ANGANWADI WORKERS/HELPERS DATED 6/1/2007

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R8(C) COPY OF THE PRIORITY LIST OF ANGANWADI WORKERS/HELPERS PREPARED BY THE CLAPPANA GRAMA PANCHAYATH DATED NIL

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R8(D) COPY OF THE PRIORITY LIST OF ANGANWADI WORKERS/HELPERS PREPARED BY THE K.S.PURAM GRAMA PANCHAYATH DATED NIL

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R8(E) COPY OF THE PRIORITY LIST OF ANGANWADI WORKERS/HELPERS PREPARED BY THE OACHIARA GRAMA PANCHAYATH DATED NIL

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R8(F) COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 22/9/2007

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R8(G) COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 30/11/2007

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R8(H) COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 10/11/2010

/TRUE COPY/

P.S.TO.JUDGE

sts

Dama Seshadri Naidu, J.

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W.P.(C)No.15795 of 2014 Y

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Dated this the 2^nd day of December, 2014

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JUDGMENT

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The issue raised in this writ petition is concerning

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the appointment of Anganwadi Workers/Helpers in the sixth respondent Grama Panchayat.

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Facts:

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The facts in brief are that when the third respondent issued Exhibit P1 notification calling for applications for the post of Anganwadi Worker/Helper, both the petitioners, along with many other persons, applied for the said post. Though the notification was issued in 2004, when the process of recruitment was delayed, to tide over the administrative exigencies, the respondent authorities are said to have formulated a scheme for appointing temporary hands as a stop-gap arrangement. Later,

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WPC 15795/14 2

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disputes arose whether those temporary hands were required to be regularized. In that context, the first respondent issued Exhibit P2 Order dated 22.09.2007 directing regularisation of temporary hands in all the Panchayats except the sixth respondent Panchayat.

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Having submitted a representation for regularisation, the seventh respondent, a temporary hand working in the sixth respondent Panchayat, filed W.P.(C)No. 18571/2007 and invited Exhibit P4 judgment, through which this Court directed the respondent authorities to consider the case of the seventh respondent herein for regularisation.

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Taking Exhibit P4 judgment into account, the Government issued Exhibit P3 order on 30.11.2007 canceling Exhibit P2 order, where under, initially the sixth respondent Grama Panchayat stood exempted from the process of regularisation of temporary hands working in the said Grama Panchayat. Aggrieved by Exhibit P3 order,

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certain persons, who applied in response to Exhibit P1 notification, filed two writ petitions–W.P.(C).Nos.32925/2007 and 2744/2008. On the other hand, one of the temporary hands filed W.P.(C)No.35013/2007, seeking regularisation in terms of Exhibit P3. Taking up all the three writ petitions together, a learned Single Judge of this Court, through Exhibit P5 common judgement, allowed W.P.(C)Nos. 32925/2007 and 2744/2008 setting aside Exhibit P3, while dismissing W.P.(C)No.35013/2007 filed by the temporary hand. Aggrieved, some of the respondents in W.P.(C)Nos. 32925/2007 and 2744/2008 filed Writ Appeal Nos.431/2012, 4322012 and 433/2012, which eventually were allowed by a learned Division Bench of this Court through Exhibit P6 judgment, setting aside Exhibit P5 judgment.

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Consequent upon Exhibit P6 judgment, the second respondent issued Exhibit P7 proceedings directing the fourth respondent to consider the case of the persons in the seniority list of Anganwadi Workers/Helpers of the sixth

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respondent Grama Panchayat for regularisation as per G.O. (MS)No.02/2007 dated 06.01.2007. It appears that Exhibit P8 contains the guidelines for regularisation. Questioning Exhibit P7 proceedings, the petitioners, who were not parties to any of the above proceedings, have filed the present writ petition.

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CONTENTIONS:

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a) Petitioners’:

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In the above factual backdrop, the learned counsel for the petitioners has strenuously contended that all the temporary hands, including the private respondents in the present writ petition, have been appointed subsequent to Exhibit P1 notification. He has further submitted that the respondent authorities have expressly barred the persons who have applied in response to Exhibit P1 notification from being engaged as temporary hands. It is his contention that the temporary hands have been appointed making it clear

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that under no circumstance could their tenure be made permanent, especially in the face of Exhibit P1 notification. Later, despite such policy decision on their part, the respondent authorities abandoned Exhibit P1 notification and issued Exhibit P3 order, as if this Court gave such a direction through Exhibit P4, which, according to the learned counsel for the petitioners, is only a direction to the authorities to consider the representation of the seventh respondent for regularisation.

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Bringing to the notice of this Court the contents of Exhibit P7, the learned counsel has submitted that even the learned Division Bench in Exhibit P6 judgment has only directed the respondent authorities to act in accordance with law and that it does not specify in positive terms that the temporary hands are to be regularised.

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The learned counsel has made very elaborate submissions with regard to the binding nature of Exhibit P6 judgment. In that regard, he has submitted that Rule 148 of

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the Rules of the High Court of Kerala, 1971 ('the Rules' for brevity) makes it mandatory that all the affected persons should be arrayed as parties and that they should be put on notice. He has drawn my attention to the fact that in the present writ petition, the petitioners have taken steps in terms of Rule 148 of the Rules to ensure that the private respondents have represented all those who are not before the Court. According to the learned counsel, the judgment rendered in Exhibit P6 is one in personam and cannot be treated as one in rem. In support of the said submission, the learned counsel has placed reliance on res judicata, a wellknown commentary by Spencer Bower, Turner and Handley. The learned counsel has also contended that the petitioners who initially invited Exhibit P5 judgment, being the applicants under Exhibit P1 notification, strangely did not choose to contest the appeal filed by the unsuccessful respondents in the writ petition. Thus, essentially Exhibit P6 judgment, contends the learned counsel, was rendered in

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the absence of effective representation on the part of the applicants under Exhibit P1 notification. According to him, Exhibit P6 has been obtained by the appellants in collusion with the non-contesting private respondents, who, in fact, successfully invited Exhibit P5 judgment.

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The learned counsel has also taken this Court through Exhibit P5 judgment and also the counter affidavit filed by the sixth respondent in earlier rounds of litigation, to stress the point that earlier the said Grama Panchayat was supporting the stand of the applicants under Exhibit P1 notification, but, later in the writ appeal it changed its stand by supporting the appellants, i.e. the temporary hands.

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As to the binding nature of Exhibit P6 judgement, the learned counsel has referred to Sections 40 to 43 of the Evidence Act, apart from relying on a judgment of the High Court of Andhra Pradesh in Hussain Ali Khan v. State of Andhra Pradesh and Others¹ . Concerning the legal

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1 AIR 2013 AP 187

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proposition of judgments being in rem and in personam, the learned counsel has placed reliance on Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju² , Syed Askari Hadi Ali Augustine v. State³ .

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Eventually, the learned counsel has placed reliance on Asha Sharma v. Chandigarh Administration and Others⁴ to drive home the principles of res judicata and also the procedure to be followed when no method or mode has been prescribed for making appointments to a particular post.

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Summing up his submissions, the learned counsel has submitted that the respondent authorities ought to have proceeded with Exhibit P1 notification and made appointments, instead of abandoning the whole process and making efforts to regularise the temporary hands, despite the initial stand of the Government that no temporary hands

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could be regularized, as it was only a stopgap arrangement.

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2 (2006) 1 SCC 212

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3 (2009) 5 SCC 528

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4 (2011) 10 SCC 86

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b) Respondents’:

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Sri.N.N.Sugunapalan, the learned Senior Counsel appearing for the eighth respondent, has submitted that Exhibit P3 superseded Exhibit P2, and as a result, the exemption provided earlier to the sixth respondent Grama Panchayat no longer survives. In other words, in the face of Exhibit P3, the sixth respondent Grama Panchayat has been brought on a par with all other Grama Panchayats where the temporary hands have been regularised. According to the learned Senior Counsel, in the light of Exhibit P6 judgment, the issue is no longer res integra and it squarely binds the petitioners who are similarly placed with the private respondents in the said judgment.

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The learned Senior Counsel has stressed that though Exhibit P6 judgment, strictly speaking, may not be between inter parties, in so far as the petitioners are concerned, since the same issue based on the same set of facts has been considered by a learned Division Bench of

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this Court, it is at least to be treated as a binding precedent and this Bench of lesser strength cannot travel beyond it, much less, take a contrary decision. In support of the said submissions, the learned Senior Counsel has placed reliance on Bharat Petroleum Corpn. Ltd. and Another v. N.R.Vairamani and Another⁵ , Ramesh Singh Alias Photti v. State of A.P.⁶ , State of Uttar Pradesh v. Rabindra Singh⁷ . He has also submitted that the petitioners were said to have filed a review petition against the judgment of the learned Division Bench, but were not successful.

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Referring to Exhibit P6 judgment, the learned Senior Counsel has contended that there is no substance in the contention of the petitioners that there was no positive direction in Exhibit P6 judgment. According to him, the learned Division Bench, while allowing the writ appeals, considered various aspects of the case regarding the 5 (2004) 8 SCC 579 6 (2004) 11 SCC 305

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7 (2009) 6 SCC 691

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constitutional significance of the rights of the applicants pursuant to Exhibit P1 notification dated 27.01.2004. Further, referring to State of Kerala and others v. Ameerbi and others⁸ , the learned Senior Counsel would contend that the learned Division Bench has rendered Exhibit P6 judgment relying on the ratio laid down in Ameerbi's case (supra). So long as the post in question is not a civil post, the constitutional protection as envisaged under Articles 14 and 16 of the Constitution of India could not be available to the petitioners. Precisely on those grounds, contends the learned Senior Counsel, the learned Division Bench has rendered Exhibit P6 judgment setting aside Exhibit P5 judgment.

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The learned counsel for additional respondents 9 to 43 has begun his arguments on a rhetorical note and submitted that what is effectively challenged in this writ petition is the judgment of the learned Division Bench, i.e.

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8 (2007) 11 SCC 681

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Exhibit P6. Entertaining such writ petitions, according to him, will lead to chaos and confusion, thereby undermining the confidence of the people. Leaving aside the rest of the rhetorical aspects of the submissions, I may further extract his submissions in concrete terms. The learned counsel has submitted that out of 978 Grama Panchayats in the State of Kerala, only the sixth respondent Grama Panchayat was initially exempted. Later, having realised the mistake on its part, the Government issued a corrective order in Exhibit P3, thus bringing it on a par with every other Grama Panchayat in so far as regularisation of the temporary hands are concerned. According to the learned counsel, so long as Exhibit P6 stands, the petitioners cannot be heard saying that they have got any claim to any post, especially in the face of Exhibit P1 notification, which stood abandoned long back. Accordingly, he has urged this Court to dismiss the writ petition with exemplary costs.

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The learned Government Pleader, in tune with averments made in counter affidavit filed by the second respondent, has submitted that in so far as the sixth respondent Grama Panchayat is concerned, initially the project authorities identified 108 posts to be filled up and for that purpose they issued Exhibit P1 notification. According to her, even though the interview for selection was fixed, the same could not be completed owing to various administrative constraints. In that context, for the smooth functioning of the newly sanctioned project, temporary appointments from the persons other than those applied for regular posts were made in the project as per the norms existed at that time. Eventually, the learned Government Pleader has contended that once Exhibit P5 judgment has been set aside, the petitioners have no substantial claim to the post in question.

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Heard the learned counsel for the petitioners, the learned Government Pleader as well as the learned counsel

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for the party respondents, apart from perusing the record.

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Issues :

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i. Whether Exhibit P4 judgment contains any judicial direction in positive terms compelling the second respondent to issue Exhibit P3 notification?

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ii. Whether Exhibit P6 judgment binds the petitioners?

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iii. Whether Exhibit P6 judgment has unequivocally declared the rights of the temporary hands or, in other words, whether Exhibit P6 contains any mandatory direction that the temporary hands working in the sixth respondent Grama Panchayat should be regularised?

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iv. Whether Exhibit P7 is issued in terms of Exhibit P6 judgment?

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In re: Issue No.1:

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To begin with, the petitioners applied for the posts of Anganwadi workers in terms of Exhibit P1

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notification dated 27.01.2014. Subsequently, in the light of administrative delays, the second respondent issued Order No.WB/A1-592/2002 dated 01.12.2002 facilitating temporary appointments to ensure smooth execution of the project. While engaging the temporary hands, there seem to have been specific conditions imposed that those persons who had submitted applications in response to Exhibit P1 notification should not be appointed temporarily and that the appointments would be purely provisional and would not confer any right or benefit to the appointees, other than the entitlement to the honorarium for the work done. In fact, the second respondent in his counter affidavit has made it clear that at the time when the appointments were made on temporary basis, it was excluding the applicants under Exhibit P1. When the second respondent issued Exhibit P2 order permitting regularisation of temporary hands in the Grama Panchayats, the sixth respondent Grama Panchayat was exempted from its purview on the ground that in this

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Grama Panchayat when temporary hands had been appointed, the applicants under Exhibit P1 were not allowed to be appointed on temporary basis. At a later point of time, one of the temporary hands who was appointed in 2005, i.e., subsequent to Exhibit P1, filed W.P.(C)No.18571/2007 inviting Exhibit P4 judgment, wherein a direction was given to the second respondent to consider the claim of the petitioner, the seventh respondent herein, within three months.

¶180

Consequent to Exhibit P4 judgment, the second respondent issued Exhibit P3 Order dated 30.11.2007, modifying Exhibit P2, thereby removing the exemption granted to the sixth respondent Grama Panchayat concerning regularisation of temporary hands. In Exhibit P3 (Exhibit R8(g), translated version), it is mentioned that Exhibit P2 order was issued when W.P.(C)No.18571/2007 filed by a temporary Anganwadi Worker was pending and that in the light of the judgment rendered thereafter,

¶181

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¶182

Exhibit P3 came to be issued. In other words, reading of Exhibit P3 gives an impression as if the Government stand concerning the exemption provided to the sixth respondent Grama Panchayat in Exhibit P2 had to be changed through Exhibit P3 only owing to Exhibit P4 judgment. It is, therefore, necessary to examine the scope of Exhibit P4 judgment which, being cryptic, is quoted in its entirety:

¶183

“The petitioner is an Anganwadi worker. According to her, she has been employed as an Anganwadi Worker in the year 2005. She has raised a claim for regularisation of services in Ext.P3 to which the petitioner is also a signatory.

¶184

I have heard the learned Government Pleader also.

¶185

In the circumstances, the writ petition is disposed of directing the second respondent to take a decision on Ext.P3, after hearing the petitioner, within a period of three months from the date of receipt of a copy of this judgment.”

¶186

Given the scope of Exhibit P4 judgment, it is to

¶187

be held that Exhibit P3 order neither originates from nor is influenced by Exhibit P4 judgment.

¶188

WPC 15795/14

¶189

¶190

In re: Issue No.2:

¶191

At any rate, before moving further, it is to be made clear that much water has flowed subsequent to Exhibit P3, in the light of the later judicial proceedings initiated calling in question Exhibit P3 order. To dilate further, certain applicants under Exhibit P1 notification filed W.P.(C)Nos.32925/2007 and 2744/2008 impugning Exhibit P3 order. On the other hand, one of the temporary Anganwadi Workers filed W.P.(C)No.35013/2007 seeking regularisation without further engaging more temporary hands. Eventually, through Exhibit P5 judgment, a learned Single Judge of this court allowed W.P.(C)Nos.32925/2007 and 2744/2008, thereby quashing Exhibit P3 order.

¶192

One of the temporary hands, the seventh respondent in W.P.(C)No.2744/2008 filed W.A.No.431/2012. Similarly other writ appeals, W.A.Nos.432/2012 and 433/2012 were also filed. Eventually, a learned Division Bench of this Court, placing reliance on Ameerbi's case

¶193

¶194

WPC 15795/14

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(supra), allowed the writ appeals through Exhibit P6 common judgment.

¶196

Referring to Exhibit P6 judgment of the learned Division Bench, the learned counsel for the petitioners has submitted that it was obtained by the appellants fraudulently. It is to be seen that the petitioners in W.P.(C) Nos.32925/2007 and 2744/2008, being the respondents in all the three writ appeals, did not choose to contest the matter. I am afraid, on the simple premise that they failed to contest the matter, it cannot be concluded that Exhibit P6 judgment has been obtained by the appellants either fraudulently or collusively. To bring home such grave charge, the standard of proof required is much higher.

¶197

In response to the contention of the learned counsel for the petitioners that all the affected persons have not been made parties in the writ appeals and it is in violation of Rule 148 of the Rules cannot be countenanced for more than one reason. To begin with, the writ appeals

¶198

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are not the original proceedings; they arose out of the writ petitions filed by the persons similarly placed to the petitioners herein. In fact, they did not choose to add all the temporary hands as party respondents in the writ petitions, the original proceedings.

¶201

When appeals have been filed by the aggrieved persons they only showed the petitioners in the writ petitions as the respondents. Secondly, having come to know of Exhibit P6 judgment, the petitioners themselves with leave filed review petitions, the details of which are not readily available, but remain admitted. But the petitioners could not succeed in their efforts. As such, the entire discussion on the nature of Exhibit P6, namely, whether it is in personam or in rem, and whether it suffers from the vice of not arraying the necessary parties to the proceedings in terms of Rule 148 of the Rules is obviated.

¶202

In the alternative, we may as well see that a judgment not inter-parties may not bind others as a matter

¶203

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¶204

of res judicata, though similarly situated, but it does, as a precedent, on the principle of stare decisis. In Union of India v. Krishan Lal Arneja⁹ the facts are that fourteen properties were notified for acquisition under the provisions of the Kerala Land Acquisition Act, 1894. Only two persons had previously challenged the validity of the acquisition by filing writ petitions before the High Court and had the cases decided in their favour finally by the Supreme Court. In that context, the Hon'ble Supreme Court has held that the decisions in the earlier cases were binding precedents for the subsequent appeal that was preferred by the Union of India. In fact, Krishan Lal Arneja's case (supra) was quoted with approval in Fida Hussain v. Moradabad Development Authority¹⁰ .

¶205

A precedent operates to bind in similar situations, in distinct and different cases, though. Res judicata, on the other hand, operates to bind parties to the

¶206

9 (2004) 8 SCC 453

¶207

10 (2011) 12 SCC 615

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proceedings for no other reason than that there should be an end to litigation. (vide Makhija Construction & Engg.

¶211

(P) Ltd. v. Indore Development Authority¹¹ .

¶212

It is, thus, to be held that Exhibit P6 binds the

¶213

petitioners, if not as a matter of res judicata, at least as a precedent.

¶214

In re: Issues 3 and 4:

¶215

Now we may have to examine the scope of Exhibit P6 judgment and the validity of Exhibit P7. It is profitable to extract the operative portion of Exhibit P6, which reads thus:

¶216

“Therefore, we vacate the findings rendered by the learned Single Judge in the impugned judgment, and set aside the judgment.

¶217

Learned Senior Counsel for the appellants submitted that in W.P.(C)No.35013/2007 the second prayer is to consider the claim of the petitioner/appellant therein for regularisation. It is up to the competent authority to consider the various aspects regarding the claim of the appellant and similarly placed persons who have been temporarily appointed. The same shall be

¶218

11 (2005) 6 SCC 304

¶219

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done within a period of five months from the date of receipt of a copy of this judgment. The appeals are allowed as above No costs.” (emphasis supplied)

¶222

The learned Division Bench has specifically

¶223

observed that it is up to the competent authority to consider the various aspects of the claim of the appellants and similarly placed persons who have been temporarily appointed within five months from the date of receipt of a copy of the judgment. Thus, it can be safely said that there is no positive direction in mandatory terms that all the temporary hands have to be regularised. All that the learned Division Bench has held is that it is for the competent authority to take a decision in terms of the policy prevailing concerning regularisation of temporary hands. In other words, the cloud cast on Exhibit P3 order through Exhibit P5 judgment has been cleared through Exhibit P6 judgment. Under those circumstances, the position concerning regularisation boils down to this: regularisations,

¶224

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¶225

if any, shall be strictly in accordance with the policy being consistently adopted by the respondent authorities. This observation, obvious as it seems, is required to be made given the fact that Exhibit P3 in the first place was issued as if there were a direction by this Court in Exhibit P4 judgment; again Exhibit P7 order was issued, as if the learned Division Bench had mandated thus.

¶226

It is, therefore, essential to examine Exhibit P7 order issued by the second respondent in the above factual setting. It reads thus:

¶227

“Attention is invited to the reference cited. The Division Bench of the Hon'ble High Court has passed a judgment on 10/2/2014 in W.A.431/12 filed by Smt.Smitha Nair over the Single Bench Judgment dated 8/12/2011 in W.P.(C)No.2744 of 2008 filed by Smt.Sathiamma and others of Thazhava Grama Panchayath coming under the Ochira ICDS Project. You are directed to consider those who are in the seniority list of Anganwadi Workers/helpers existing in the Thazahava Grama Panchayath for regularisation as per the Government Order No.2/2007 dated 6.1.2007 subject to the Government Orders.”

¶228

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I am constrained to observe that Exhibit P6 judgment may have given rise to Exhibit P7, but it does not give any judicial imprimatur to the proposed action of respondent officials. Once an appeal sets at naught a positive relief given to the petitioner in the original proceedings, it only sets the clock back by negating the claim of the petitioner, but does not, with the same stroke, declare any positive rights in favour of the respondent, who had only the mission of objecting to or defeating the claim of the petitioner.

¶231

In the face of doctrine of merger, whatever declaration made in Exhibit P5 judgment regarding Exhibit P3 stands annulled through Exhibit P6 judgment. With Exhibit P3 restored to its position, it is entirely for the authorities to proceed further in the manner that befits its recruitment policy.

¶232

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¶233

¶234

Other Decisions cited at the Bar:

¶235

35. In Hussain Ali Khan's case (supra), a learned Single Judge of the High Court of Andhra Pradesh (united) has referred to Sections 41 to 43 and 115 of the Indian Evidence Act, 1872, and held that estoppel by Judgment traceable to Section 115 of the Indian Evidence Act, 1872, applies to the parties to the Judgment and not to a third party unless the Judgment is in rem.

¶236

In Satrucharla Vijaya Rama Raju's case (supra), the Hon'ble Supreme Court, while dealing with election petitions, has held that a judgement not being inter parties, the best status that can be assigned to it is to say that it is of high evidentiary value, while considering the case of the parties in a similar matter.

¶237

In Syed Askari Hadi Ali Augustine Imam's

¶238

case (supra), the Apex Court has examined the scope of Section 41 of the Evidence Act in the context of probate proceedings and has held that it is beyond any cavil that a

¶239

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judgment rendered by a probate court is a judgment in rem, and that it being a judgment in rem, it will have effect over other judgments. As has already been observed, the dichotomy of in personam and in rem is obviated; hence no specific reference is made to these precedents.

¶242

On the part of the respondents, among the decisions cited at the Bar is Ramesh Singh's case (supra). It is held that the totality of circumstances could hardly be ever similar in all cases. Therefore, unless and until the facts and circumstances in a cited case are in pari materia in all respects with the facts and circumstances of the case in hand, it will not be proper to treat an earlier case as a precedent to arrive at a definite conclusion.

¶243

In Ameerbi's case (supra), the sheet anchor of the respondents' submissions, the Apex Court has examined the scope of the Anganwadi Scheme in the context of Section 15 of the Administrative Tribunals Act, 1984. It has held that the Anganwadi workers are appointed from

¶244

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amongst the local inhabitants based on the selection made by a committee. When Anganwadi workers filed an application under Section 15 of the Administrative Tribunals Act, 1985 before the Karnataka State Administrative Tribunal, the application was held to be not maintainable. Correctness of the said decision came to be questioned. Eventually, when a larger Bench of the Tribunal held that the said application was maintainable on the premise that the Anganwadi workers held a civil post, the State took the matter to Supreme Court.

¶246

Examining the mode and manner of the appointment of the Anganwadi workers, as well as the functions they discharge, the Hon'ble Supreme Court has held that Anganwadi workers do not carry on any function of the State; they do not hold posts under a statute, their posts are not created, and recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. The State is not required to comply with the

¶247

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constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. No process of selection for the purpose of their appointment within the constitutional scheme exists. Thus, their Lordships have held that the Anganwadi workers do not hold any civil post. The fundamental aspect is whether the ratio of Ameerbi (supra) has any application to the facts of the present case.

¶249

THE PRECEDENTIAL PRECINCTS:

¶250

In this respect, it is requisite to examine certain judicial precedents having salutary effect on the applications of precedents to the facts of a particular case. In Bharat Petroleum Corpn. Ltd. (supra) the Hon'ble Supreme Court has held as follows:

¶251

“9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in which the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear

¶252

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¶253

¶254

to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interest judgments. They interpret words of statutes; their words are not to be interpreted as statutes…”

¶255

In fact, in Vairamani (supra), the Hon'ble Supreme Court, while referring to a certain English precedents, quotes with approval Lord Denning's picturesque expressions, which bear repetition:

¶256

“12. [E]ach case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.

¶257

Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and

¶258

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¶259

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branches. My plea is to keep the path to justice clear of obstructions which could impede it.”

¶261

Even the ratio in Rabindra Singh and Ramesh

¶262

Singh (supra) echoes the same legal position.

¶263

Before parting with the issue, it is appropriate to appreciate the ratio laid down by the Hon’ble Supreme Court in Asha Sharma (supra) as to the manner of performing administrative or executive actions. It is worthwhile to reproduce the observation of the Hon’ble Supreme Court, which is as follows:

¶264

“14. Action by the State, whether administrative or executive, has to be fair and in consonance with the statutory provisions and rules. Even if no rules are in force to govern executive action still such action, especially if it could potentially affect the rights of the parties, should be just, fair and transparent. Arbitrariness in State action, even where the rules vest discretion in an authority, has to be impermissible. The exercise of discretion, in line with principles of fairness and good governance, is an implied obligation upon the authorities, when vested with the powers to pass orders of determinative nature. The standard of fairness is also dependent upon certainty in State action, that is, the class of persons, subject to regulation by the

¶265

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Allotment Rules, must be able to reasonably anticipate the order for the action that the State is likely to take in a given situation. Arbitrariness and discrimination have inbuilt elements of uncertainty as the decisions of the State would then differ from person to person and from situation to situation, even if the determinative factors of the situations in question were identical. This uncertainty must be avoided.”

¶268

The ineluctable issues that come to mind in this

¶269

case are that all those applicants under Exhibit P1 were not allowed to be engaged on a temporary basis; those who had been engaged on temporary basis were engaged with an express assertion that they could not stake any claim for regularisation; all the temporary hands had been engaged subsequent to Exhibit P1 notification; sixth respondent Panchayat alone issued Exhibit P1 notification, thus differentiating itself from other Panchayats; Exhibit P3 has nothing to do with Exhibit P4 judgement; and, in the name vein, Exhibit P7 does not directly emanate from Exhibit P6 judgment, though the said judgment did remove the impediments in the way of Exhibit P3 Government Order.

¶270

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¶272

The petitioners sought the following items of

¶273

relief:

¶274

i. to direct respondents 1 to 6 to complete the selection process based on Exhibit P1 dated 27.01.2004;

¶275

ii. to quash Exhibit P7 dated 20.03.2014;

¶276

iii. to take appropriate decision on petitioners' Exhibits P9 and P10 representations dated 02.06.2014 and

¶277

iv. to redress the grievances of the petitioners and other applicants who applied based on Exhibit P1 before considering the claim for regularisation of temporary appointees.

¶278

This Court, without leaving any room for doubt, makes it clear that Exhibit P3 stands with all its force restored in the light of Exhibit P6 judgment of a learned Division Bench of this Court. In the manner indicated above, it does not, however, mean that the authorities could simply disown Exhibit P1 notification and disband the whole process of recruitment by employing euphemisms such as:

¶279

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“the selection process could not be completed due to various reasons”. It is further to be held that Exhibit P7 cannot be enforced until the respondents take a comprehensive view of the issue and determine the respective claims of the petitioners, i.e., the applicants under Exhibit P1 on one hand, and the temporary hands, for whose benefit Exhibit P3 order was issued, on the other.

¶282

In the facts and circumstances, in so far as the issue of regularisation of the temporary hands is concerned, the respondent authorities shall strictly adhere to the policy of regularisation that governs the issue. Ipso facto, Exhibit P7 communication addressed by the second respondent to the fourth respondent shall also be considered in the same perspective.

¶283

In the above manner, the writ petition stands disposed of. No order as to costs.

¶284

Dama Seshadri Naidu, Judge.

¶285

tkv

Shakeela Beevi v. State of Kerala

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Shakeela Beevi v. State of Kerala

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