Dismissed

Haripriya K.S v. the State of Kerala

Kerala HC9 Dec 2014WP(C)/26864/2014

Case brief

AI extract

What is this about?

The Court dismissed writ petitions filed by temporary Senior Lecturers against a new recruitment notification. It held that by participating in the selection process without protesting their vacant regularization status, the petitioners are estopped from now invalidating the results to challenge the fresh attempts to recruit temporary staff.

What did the court decide?

Petitioners' claims for regularization rejected; writ petitions dismissed with a direction to consider their cases sympathetically for continuation pending vacant positions.

Haripriya K.S Vs the 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 9TH DAY OF DECEMBER 2014/18TH AGRAHAYANA, 1936

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WP(C).No. 26864 of 2014 (G)

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PETITIONER: -

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HARIPRIYA K.S., W/O.SARATH, AGED 30 YEARS, SENIOR LECTURER, SI-MET COLLEGE OF NURSING, PALLURUTHY, ERNAKULAM DIST ADN IS R/A.KADAVIL HOUSE, SOUTH PARAVOOR P O, UDAYAMPEROOR, ERNAKULAM-682320

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BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD

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RESPONDENTS: -

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THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

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THE DIRECTOR ,

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STATE INSTITUTE OF MEDICAL EDUCATION & TECHNOLOGY(SI-MET), PALLIMUKKU , PETTA P O,

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THIRUVANANTHAPURAM-695024.

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THE PRINCIPAL,

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SI-MET COLLEGE OF NURSING, PALLURUTHY, ERNAKULAM-682005

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BY GOVERNMENT PLEADER SRI. V. VIJULAL

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09-12-2014, ALONG WITH WPC. 24462/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 26864 of 2014 (G)

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APPENDIX

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PETITIONER'S' EXHIBITS : -

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EXT P1 :-	TRUE COPY OF THE ORDER No. E/2036/2010/SI-MET ISSUED BY THE 2ND RESPONDENT DATED 28/12/2011.
EXT P2 :-	TRUE COPY OF THE ORDER No. E/73/2012/SI-MET ISSUED BY THE 2ND RESPONDENT DATED 11/1/2012.
EXT P3 :-	TRUE COPY OF THE ORDER No. E-546/2010/CNP ISSUED BY THE 3RD RESPONDENT DATED 10/4/2012.
EXT P4 :-	TRUE COPY OF NOTIFICATION No. E/300/2013/SI-MET DATED 2/3/2013.
EXT P5 :-	TRUE COPY OF THE INTERIM ORDER IN WPC NO 24462/2013 ON THE FILE OF THIS HONOURABLE COURT DATED 20/9/2014.
EXT P6:-	TRUE COPY OF AN ORDER PASSED BY THE 2^ndRESPONDENT GRANTING EXTENSION TO A BATCH OF PERSONS DIVIDED INTO TWO GROUPS Viz., A AND B DATED 16.7.2013.

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RESPONDENTS' EXHIBITS : -

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EXHIBIT R2(a) : TRUE COPY OF THE CONTRACT AGREEMENT.

// TRUE COPY //

P.A. TO JUDGE

DMR/-

DAMA SESHADRI NAIDU, J.

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W.P.(c) Nos. 26864 & 24462 of 2014

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Dated this the 09^th day of December, 2014

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COMMON JUDGMENT

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In this writ petition the issue is whether the State is trying to replace one set of temporary hands with another set of temporary hands in its service.

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FACTS:

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The petitioners in W.P. (C) No.24462/2014 and the petitioner in W.P. (C) No.26864/2014, being the Senior

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Lecturers, working in the third respondent College on a contract basis, have a common grievance concerning the efforts of the Government in going ahead with selecting new hands through another notification, thereby dispensing with their services. Thus having a common grievance, they filed the present writ petitions against the same set of respondents, essentially on the same cause of action. This Court, therefore, proposes to dispose of the writ petitions through a common judgment.

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W.P.(c) Nos. 26864/14 & 24462/14

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Briefly stated, all the petitioners were appointed as

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Senior Lecturers on contract basis through Exhibits P11(a) to P11(d) in the years 2011 and 2012, based on a walk-ininterview held on 23.09.2011. Though initially the tenure was fixed as one year, it was extended as could be seen from Exhibit P3. Similarly, the petitioner in W.P. (C) No. 26864/2014 was also appointed through Exhibit P1 therein in December 2011.

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On 02.03.2013, the third respondent College issued

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Exhibit P6 notification calling for applications to appoint Senior Lecturers for a period of one year on a consolidated pay. Since there is some controversy with regard to whether it is a consolidated pay or a regular pay, it is appropriate to reproduce the part of the notification that deals with the aspect of pay:

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*Name of Post*	*Scale/Consolidated Pay*	*Qualification*
Senior	(15600-39100) AGP	On contract basis with
Lecturer	6000 (revised)	INC/AICTE qualifications with consolidated monthly salary amount equal to scale of pay with 35% DA + HRD and CCA applicable.
		Appointment will be on contract basis for a period of oneyear.

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W.P.(c) Nos. 26864/14 & 24462/14

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All the petitioners, without exception, had applied in response to Exhibit P6 notification, but only the fifth petitioner in W.P. (C) No. 24462/2014 did not participate in the subsequent written examination conducted on 23.02.2014. It has come to light that all of them failed to qualify. Under these circumstances, the petitioners have filed the present writ petitions.

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CONTENTIONS:

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Petitioners’:

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The learned counsel for the petitioners in W.P. (C) No.24462/2014 has strenuously contended that there is discrimination writ large on the face of the action initiated by the respondents by issuing Exhibit P6 notification. He has submitted that in 2010, 2011 and 2013, there had been a series of recruitments, on temporary basis though, to various posts of Senior Lecturers in the Colleges under the management of the second respondent. According to him, the Senior Lecturers recruited in 2010 were regularized, but the petitioners, who were recruited in 2011 & 2012, have been singled out for a discriminatory treatment.

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W.P.(c) Nos. 26864/14 & 24462/14 4

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Faced with the question why the petitioners in the first place responded to Exhibit P6 notification and participated in the selection process, instead of insisting on their regularization, the learned counsel for the petitioners has submitted that in terms of appointments to be made under Exhibit P6, the post carries higher salary. Without giving up their rights that had accrued on the basis of their initial selection and appointment in 2012, the petitioners participated in the selection process under Exhibit P6 only with a view to securing better service benefits.

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The learned counsel for the petitioner in W.P. (C) No.26864/2014 has submitted, referring to Exhibit P6 in the said writ petition, that even in the year 2011 two groups of employees were recruited on a temporary basis, namely Group A comprising six persons and Group B comprising five persons. The petitioner belongs to Group B. According to the learned counsel, only Group B employees are being replaced by fresh hands under Exhibit P4 notification (Exhibit P6 in W.P. (C) No.24462/2014). The learned counsel has further submitted that both the groups have been subjected to similar recruitment processes, notwithstanding the remark

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W.P.(c) Nos. 26864/14 & 24462/14 5

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in Exhibit P6 that Group A candidates had been recruited through interview after a widely publicised notification. In other words, the learned counsel contends that this aspect of wide notification remains unexplained.

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The learned counsel for the petitioners eventually submitted that the petitioners have been working for considerable time and at this juncture dispensing with their services will have severe consequences as far as their careers are concerned. Accordingly, the learned counsel has urged this Court to allow the writ petition. In the process of his submissions, the learned counsel has placed reliance on State of Haryana and Others v. Piara Singh and Others

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[1992 (4) SCC 118] and Nagamani K.A. v. Indian Airlines and Others 2009 (5) SCC 515.

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Respondents’:

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Per contra , the learned Government Pleader has strenuously contended that initially the petitioners were appointed way back in 2011 through a walk-in-interview without subjecting them to any due process of selection, such as conducting a written test to ascertain the merit and suitability of the petitioners to the post of Senior Lecturer.

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W.P.(c) Nos. 26864/14 & 24462/14

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Adverting to the aspect of the dichotomy of Group A and Group B recruitees, the learned Government Pleader has submitted that in so far as Group A is concerned, all of them have been recruited after due selection process including a written test, which assertion is, however, contested by the learned counsel for the petitioners.

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The learned Government Pleader has strenuously contended that all the petitioners applied for the post of Senior Lecturer in response to the latest notification dated 02.03.2013, but could not secure the minimum qualifying marks. Under those circumstances, the petitioners, contends the learned Government Pleader, have approached this Court. According to him, their conduct is hit by estoppel, in terms of the ratio laid down by the Honourable Supreme Court in the following decisions:

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Om Prakash Shukla v. Akhilesh Kumar Shukla

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and Others [1986 (Supp) SCC 285], Dhananjay Malik and Others v. State of Uttaranchal and Others (2008) 4 SCC 171, K.A. Nagamani v. Indian Airlines and Others (2009) 5 SCC 515, A.P. Public Service Commission, Hyderabad and Another v. B. Sarat Chandra and

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W.P.(c) Nos. 26864/14 & 24462/14

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Others (1990) 2 SCC 669.

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Heard the learned counsel for the petitioners and

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the learned Government Pleader for the respondents, apart from perusing the record.

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ISSUE:

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The issue lies in a narrow compass: whether in terms of notification dated 02.03.2013, the respondents are making efforts to replace one set of temporary hands with another set of temporary hands.

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DISCUSSION:

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It is not in dispute that way back in 2011 and 2012 the petitioners were appointed through the process of a walk-in-interview. It is further not in dispute that they were appointed on contract basis for one year. As could be seen from Exhibit P3, proceedings were issued on 05.12.2013 extending the tenure of one of the petitioners by one more year. Exhibit P3, inter alia, reads thus:

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“As per order 1^st read above Mr. Saran S. who is appointed as a Senior Lecturer, in SI-MET College of Nursing Udma temporally on contract basis for a period of one year on 26.06.2012 and worked as such up to 05.04.2013, temporarily till the appointment of

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W.P.(c) Nos. 26864/14 & 24462/14 8

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permanent hand on consolidated remuneration of Rs.21,600/- per month, has been reported for duty in SI-MET College of Nursing Udma on FN of 05.12.2013. He is admitted to duty as such.”

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Thus, it is quite evident that the petitioners have

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been appointed on a contract basis not bound to be removed unless or otherwise the employer chooses so to do. Now the question to be addressed is whether there is any discrimination practiced by the respondents in leaving out one set of employees and seeking to replace another set of employees said to be similarly placed.

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On the issue of not disturbing Group A employees from Exhibit P6, the learned Government Pleader has submitted that they have been subjected to due selection process after a widely publicised notification. Indeed, a perusal of the said proceedings makes it clear that they were recruited after such a notification as has been contended by the learned Government Pleader. But, it is not clear from Exhibit P6 whether that set of employees has been subjected to any written test. The fact, however, remains that in so far as the petitioners are concerned, they were recruited after a

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W.P.(c) Nos. 26864/14 & 24462/14 9

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walk-in-interview without any wide publicity of the recruitment.

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When Exhibit P6 dated 02.03.2013 is examined, among other posts, the post of Senior Lecturer has also been notified with a pay structure of Rs.15600-39100 with AGP 6000 (revised). It is the contention of the learned counsel for the petitioners that they applied for the said post in view of the higher pay. If one were to accept the said contention, it had to be further accepted that those posts had been notified only with a view to replacing the present set of temporary employees. It is not the case of the petitioners that prior to their responding to Exhibit P6 notification, they did inform the employer, by way of representation or otherwise, that their participation in the selection process should not be to their prejudice in so far as their right to regularization based on their earlier recruitment is concerned.

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Indeed, the Hon’ble Supreme Court Om Prakash Shukla (Supra) has held that once an employee choses without protest to participate in the selection process, later, on his becoming unsuccessful, he cannot turn back and assail the very selection contending that that affects his

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W.P.(c) Nos. 26864/14 & 24462/14

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vested or putative rights. It is, in fact, held that on that ground alone the claim of the parties is required to be repelled. In that regard, it is instructive to refer to the ratio in Om Prakash Shukla (Supra) , wherein it has been held thus:

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“24. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examination held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the district of Kanpur also. They were not responsible for the conduct of the examination.”

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In fact, this proposition of law has been consistently

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followed in all the subsequent decisions referred to above.

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It is further appropriate to examine the decisions relied on by the learned counsel for the petitioners. In State of Haryana and Others v. Piara Singh and Others [1992 (4) SCC 118] the Hon’ble Supreme Court has held that an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee but only by a

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W.P.(c) Nos. 26864/14 & 24462/14

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regularly selected employee. Indeed, there cannot be any quarrel about the proposition that one set of temporary employees cannot be replaced with another set of employees. If we examine the scope of initial notification way back in 2011 and that of the present notification in Exhibit P6, it is evident that in the first instance, the appointment was taken recourse to only to tide over the temporary crisis of lack of faculty in the Colleges under the management of the second respondent. As such without wide publicity, walk-in-interviews were conducted and candidates selected. Later, within a span of one year from the initial recruitment of the petitioners, Exhibit P6 notification was issued fixing the pay for the post, thereby intending to attract the best of the talents, even though the subsequent post is also on a contract basis.

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The Hon’ble Supreme Court in Official Liquidator v. Dayanand , (2008) 10 SCC 1, has elaborately dealt with the issue of recruiting candidates based on wide publicity and subjecting them to due process of selection. Their Lordships have observed thus:

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W.P.(c) Nos. 26864/14 & 24462/14

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“52. [I]t would be highly detrimental to public interest to issue direction for wholesale absorption/regularisation of the company-paid staff and thereby abrogate/stultify opportunity of competition to younger generation comprising more meritorious persons who may be waiting for a chance to apply for direct recruitment. Obviously, the Court did not want to sacrifice merit by showing undue sympathy with members of the company-paid staff who joined service with full knowledge about their status, terms and conditions of their employment and the fact that they were to be paid from the company fund and not Consolidated Fund of India. In this context, we may also mention that though the Official Liquidators appear to have issued advertisements for appointing the company-paid staff and made some sort of selection, more qualified and meritorious persons must have shunned from applying because they knew that the employment will be for a fixed term on fixed salary and their engagement will come to an end with the conclusion of liquidation proceedings. As a result of this, only mediocres must have responded to the advertisements and joined as company-paid staff. In this scenario, a direction for absorption of all the company-paid staff has to be treated as violative of the doctrine of equality enshrined in Articles 14 and 16 of the Constitution.”

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W.P.(c) Nos. 26864/14 & 24462/14 13

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There is no gainsaying the fact that in Dayanand

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the Hon’ble Supreme Court has warned against the perils of

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ad hoc appointments and misplaced sympathies. The limitations of contractual appointments have been pointed out. In the present instance, the fresh recruitment under Ext.P6 too is on a contract basis. Nevertheless, it is essential to observe that the fresh recruitment was based on improved service conditions, such as enhanced salary, thereby providing the necessary fillip to the meritorious candidates. In the present instance, the petitioners did apply in response to Exhibit P6 notification. As has been observed, it is not the case of the petitioners that prior to their participation they have submitted any representation before the employer that their participation is without prejudice to their right to claim regularization based on their prior appointment. On this count, I am afraid, the valiant efforts of the learned counsel for the petitioners to distinguish the ratio of the decisions cited above and that the principle of estoppel applies vis-v-vis the petitioners have borne no fruit. Accordingly, the contentions of the learned counsel for the petitioners are only stated to be rejected.

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W.P.(c) Nos. 26864/14 & 24462/14

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The fact, however, remains that the petitioners

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have been working for some time in the Colleges under the management of the second respondent. Though the respondents have contended that in so far as the batch of 2010 appointees and subsequently even with regard to Group A appointees of 2011, there has been due selection process, not much of material has been forthcoming from the respondents on this count. Even in the proceedings dated 16.07.2013, Exhibit P6 in W.P. (C) No.26864/2014, concerning Group A appointees, it has been stated that they have been recruited through interview after a widely publicised notification, nothing more has been revealed. The learned counsel for the petitioners have submitted that there are still vacancies in existence and the authorities may consider continuing the petitioners in the posts, given their experience.

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It is made clear that, appealing as the plea on the part of the petitioners is, this Court, however, cannot issue a mandamus compelling an authority to continue any employee once it is found that their appointment is not in compliance with due process. It is nevertheless entirely

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W.P.(c) Nos. 26864/14 & 24462/14

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permissible to direct the respondents to consider the case of the petitioners sympathetically in the light of their experience in the same organization, provided they are otherwise fit and eligible.

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CONCLUSION:

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In the facts and circumstances, the claim of the petitioners for regularization cannot be considered and accordingly the writ petitions stand dismissed. Nevertheless, it is made clear that the second respondent shall consider the claim of the petitioners for their continuation and possible regularization sympathetically, given their experience, subject, of course, to the availability of vacancies and other eligibility criteria.

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DAMA SESHADRI NAIDU JUDGE

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DMR/-

Haripriya K.S v. the State of Kerala

Case brief

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Haripriya K.S v. the State of Kerala

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