Disposed

R.Shajikumar v. State of Kerala

Kerala HC9 Aug 2016WP(C)/23553/2016

Case brief

AI extract

What is this about?

The court addressed writ petitions by terminated daily wage/watchman employees regarding their non-appointment against a rank list. Petitioners sought mandatory appointment based on a broader government direction. The court, finding the directives required interpretation regarding the scope of vacancies and rank list usage, remitted the matter to the Government for a considered decision after hear

What did the court decide?

The matter was remitted to the 1st respondent Government for a considered decision after hearing the parties, with status quo maintained pending the decision.

R.Shajikumar Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2016)

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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 ALEXANDER THOMAS

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TUESDAY, THE 9TH DAY OF AUGUST 2016/18TH SRAVANA, 1938

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WP(C).No. 23553 of 2016 (T)

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PETITIONER(S):

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1. R.SHAJIKUMAR, AGED 48 YEARS, S/O.RAGHAVAN, THARAYIL HOUSE, KADAKKARAPPILLY P.O., CHERTHALA, PIN 688 529.

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2. P.SIROSH, AGED 45 YEARS, S/O.V.PUSHKARAN, CHERIYANATTUVELI, PATTANAKKAD P.O., CHERTHALA, ALAPPUZHA.

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3. RADHAKRISHNAN NAIR.S., AGED 51 YEARS, S/O.SREEDHARAN NAIR, KURUVEZHATH HOUSE, KADAKKARAPPILLY P.O., CHERTHALA, ALAPPUZHA.

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4. SAJEENDRAKUMAR.N.C., AGED 37 YEARS, S/O.N.V.CHANDRAN, CHANDRA BHAVAN, PERINGARA P.O., THIRUVALLA.

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5. SANTHOSH.V.P. AGED 45 YEARS, S/O.PURUSHOTHAMAN, VADAKKEPALAKAVILCHIRA, OLATHALA, PATTANAKKAD P.O., CHERTHALA, PIN 688 531.

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6. SHIBU.M.C. AGED 41 YEARS, S/O.M.K.CHITHAMBARAN, MURUKESAN, ANDHAKARANAZHI P.O., CHERTHALA.

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7. PRAMOD.R. AGED 45, S/O.K.PRABHAKARAN, REDSTAR HOUSE, KALAVAMKODAM P.O., CHETHALA, PIN 688 586.

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8. SHANAVAZ.P.V. AGED 40 YEARS, S/O.K.B.VASUDEVAN, PUTHENPARAMBIL, KANJIRAM P.O., KOTTAYAM, PIN - 686 020.

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WP(C).No. 23553 of 2016 (T)

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9. DILEEP KUMAR P.V. AGED 34 YEARS, S/O.P.V.DAMODARAN, PUTHIYAVEETTIL, KOLLAM P.O., KOYILANDI (VIA), PIN-673 307.

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10. PRAMOD P.K. AGED 37 YEARS, S/O.KUNJUNNI, PEEDIYEKKAL HOUSE, THAIKKAL P.O., CHERTHALA, ALAPPUZHA.

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11. MANOJKUMAR K.C. AGED 43 YEARS, S/O.KARUNAKARAKURUP, LATHA BHAVAN, PULIYOOR P.O., CHENGANNUR, ALAPPUZHA, PIN 688 951.

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12. VIJAYAKUMAR.K. AGED 50 YEARS, S/O.APPUTTY, NEERKKAYA HOUSE, KUNDANKUZHY P.O., CHENGALAVIYA, KASARAGOD, PIN 671 541.

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BY ADVS.SRI.B.PRAMOD SMT.R.REJI (ATTINGAL)

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, AGRICULTURE DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM.

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2. THE KERALA STATE WAREHOUSING CORPORATION HEAD OFFICE, P.B.NO.1727, WAREHOUSING CORPORATION ROAD, KOCHI-682 016, REPRESENTED BY ITS MANAGING DIRECTOR.

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3. THE MANAGER (ADMINISTRATION), HEAD OFFICE, P.B.NO.1727, WAREHOUSING CORPORATION ROAD, KOCHI-682 016.

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R1 BY GOVERNMENT PLEADER SRI.P.V.ELIAYS R2&3 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR

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SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-08-2016, ALONG WITH WPC. 24738/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 23553 of 2016 (T)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT-P1:	TRUE COPY OF THE ISSUED TO THE 1S	APPOINTMENT ORDER DATED 04.05.2006 T PETITIONER.
EXHIBIT-P2:	TRUE COPY OF THE ISSUED TO THE 3RD	APPOINTMENT ORDER DATED 04.05.2006 PETITIONER.
EXHIBIT-P3:	TRUE COPY OF THE THE 1ST RESPONDEN	ORDER DATED 03.02.2007 ISSUED BY T.
EXHIBIT-P4:	TRUE COPY OF THE INTO BETWEEN THE	MEMORANDUM OF SETTLEMENT ENSURED WORKMEN AND THE 1ST RESPONDENT.
EXHIBIT-P5:	TRUE COPY OF THE THE LABOUR COURT	AWARD PASSED IN I.D.NO.41/2014 OF ERNAKULAM.
EXHIBIT-P6:	TRUE COPY OF THE LETTER DATED 21.0 RESPONDENT TO THE	STATEMENT OF FACTS WITH A COVERING 8.2015 SUBMITTED BY THE 2ND LABOUR OFFICER.
EXHIBIT-P7:	TRUE COPY OF THE 01.07.2015 ISSUED	LETTER OF INVITATION DATED TO THE 1ST PETITIONER.
EXHIBIT-P8:	TRUE COPY OF THE 01.07.2015 ISSUED	LETTER OF INVITATION DATED TO THE 2ND PETITIONER.
EXHIBIT-P9:	TRUE COPY OF THE 01.07.2015 ISSUED	LETTER OF INVITATION DATED TO THE 3RD PETITIONER.
EXHIBIT-P10:	TRUE COPY OF THE 01.07.2015 ISSUED	LETTER OF INVITATION DATED TO THE 4TH PETITIONER.
EXHIBIT-P11:	TRUE COPY OF THE 01.07.2015 ISSUED	LETTER OF INVITATION DATED TO THE 6TH PETITIONER.
EXHIBIT-P12:	TRUE COPY OF THE 01.07.2015 ISSUED	LETTER OF INVITATION DATED TO THE 8TH PETITIONER.
EXHIBIT-P13:	TRUE COPY OF THE 01.07.2015 ISSUED	LETTER OF INVITATION DATED TO THE 10TH PETITIONER.
EXHIBIT-P14:	TRUE COPY OF THE RESPONDENT.	RANKED LIST PREPARED BY THE 1ST

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RESPONDENT(S)' EXHIBITS

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ANNEXURE R2(A): TRUE COPY OF THE RELEVANT PORTION OF KERALA STATE WAREHOUSING CORPORATION GENERAL AND STAFF REGULATION 1963.

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WP(C).No. 23553 of 2016 (T)

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ANNEXURE R2(B): TRUE COPY OF THE GOVERNMENT ORDER NO.19871/PU2/14/AD DATED 21/5/15

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ANNEXURE R2(C): TRUE COPY OF THE BOARD DECISION DATED 11/06/15 ANNEXURE R2(D): TRUE COPY OF THE LIST OF SELECTED CANDIDATES.

/ TRUE COPY /

P.S. TO JUDGE

ALEXANDER THOMAS, J.

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W.P.(C).Nos.23553 & 24738 of 2016

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==================

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Dated this the 9^th day of August, 2016 J U D G M E N T

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As per the case projected in these Writ Petitions the petitioners had worked as Watchmen on daily wages under the 2^nd respondent Kerala State Warehousing Corporation from the year 2002 to 2006 and that later, in 2006, the 2^nd respondent Corporation had decided to appoint the petitioners and similarly placed casual employees in the category of Class IV Grade II on contract basis for a period of six years. But that the 2^nd respondent Corporation had later terminated the services of the petitioners with effect from 6.2.2007 in the light of the verdicts rendered by this Court in cases, where the aforestated appointments were under challenge. That some of the relieved employees challenged their termination from service before the Labour Department and consequently, industrial dispute was raised and the same was later referred to the Labour Court, Ernakulam for adjudication and ultimately, the said dispute was settled through a mediation done under the behest of the Mediation

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W.P.(C).23553/16&C.C. - : 2 :-

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Centre attached to this Court, by virtue of which the 2^nd respondent Corporation had agreed to consider the grievance of the employees. Consequently Ext.P-5 award was passed in terms of that settlement. Ext.P-6 is the statement filed by the 2^nd respondent Corporation before the District Labour Officer, Ernakulam, in the said matter. Some of the other employees including petitioners had approached the Labour Officer, Ernakulam, challenging the termination of service, upon which, the said Labour Officer issued notices to the respondent Corporation seeking their explanation in the matter. To that, the 2^nd respondent Corporation had submitted Ext.P-6 statement before the Labour Officer, in which the respondents had clarified that they would make appointment to the post of Class IV Grade II employees by conducting interview to ascertain the present status and position and that the appointments will be effected from the rank list. That the 2^nd respondent had taken such a stand in tune with the direction in a letter issued by the 1^st respondent State Government. It is averred that thereafter the 2^nd respondent Corporation conducted interview of all the relieved employees including the petitioners herein, pursuant to which the 2^nd respondent prepared Ext.P-14 rank list, in which, the

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W.P.(C).23553/16&C.C. - : 3 :-

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petitioners in W.P.(C).No. 23553/2015 appeared as rank Nos.69, 57, 66, 43, 62, 63, 42, 58, 54, 65, 78 and 77 and the petitioner in W.P.(C).No. 24738/2016 is included as serial No.64 thereof. It is the case of the petitioners that the said rank list is valid and current even now and that there are 100 vacancies of Class IV Grade II employees in the 2^nd respondent Corporation, out of which, only hardly around 40 vacancies have been filled up by appointing candidates included in Ext.P-14 rank list. That respondents 1 and 2 refused to appoint the remaining candidates due to extraneous considerations and that it is learnt that the 2^nd respondent is opting to going for fresh recruitment to fill up such vacancies and most of the petitioners have already crossed the upper age limit for seeking public employment. In the light of these facts and circumstances, the petitioners have preferred the instant Writ Petitions (Civil) with the following prayers:

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W.P.(C).No.23553/2016:

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“(i) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to make appointments to the post of Class IV Grade II employees in the 2^nd respondent corporation from Ext.P-14 rank list;

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(ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to keep alive Ext.P-14 ranked list till all the candidates listed therein are appointed to the post of Class IV Grade II in the 2^nd respondent corporation.

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W.P.(C).23553/16&C.C. - : 4 :-

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(iii) Issue such other order as this Hon'ble court deems fit and necessary in the facts and circumstances of the case.”

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W.P.(C).No. 24738/2016:

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“(i) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to make appointments to the post of Class IV Grade II employees in the 2^nd respondent corporation from Ext.P-7 rank list;

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(ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to keep alive Ext.P-7 ranked list till all the candidates listed therein are appointed to the post of Class IV Grade II in the 2^nd respondent corporation;

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(iii) Issue such other order as this Hon'ble court deems fit and necessary in the facts and circumstances of the case.”

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When the matter was taken up for consideration, the 2^nd respondent had sought time to submit statement in the matter. Later, the 2^nd respondent has filed a statement dated 3.8.2016 through their learned Standing Counsel. It is contended therein that as per Ext.R-2(a) rules, the 2^nd respondent Corporation is obliged to follow the reservation pattern as envisaged in direct recruitment for services under the Government of Kerala. It is pointed out that the petitioners were earlier working in the respondent Corporation on daily wage for some time and subsequently, they were appointed on contract basis for six years and later the Board authorised the Managing Director to terminate their services on the ground that the appointments were irregular. That all the petitioners were terminated from service of the Corporation on 3.2.2007, upon

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W.P.(C).23553/16&C.C. - : 5 :-

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which some of the employees had filed W.P.(C).No.5183/2007, which was dismissed by this Court and later Writ Appeal was filed (W.A.No.2050/2007) was also dismissed, which was also confirmed by the Apex Court in SLP (Civil) No.24337/2007.

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But it is further stated in the said statement that some of the employees had approached the Labour Court, Ernakulam, and filed I.D.No.14/2014 for reinstatement with full back wages and consequential benefits, in which the Labour Court had passed Ext.P-5 award on the basis of Ext.P-4 memorandum of settlement. The said settlement provides as follows:

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“Parties agree to settle the dispute on the following terms and conditions:

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The respondents agreed that there are vacancies at present in the post of class IV Grade II in the corporation. It is learnt that regularisation of the petitioners who were relieved as per Board decision dated 13.11.2006 from the corporation is under the consideration of the Government. Hence corporation is ready to consider the petitioners appointment as per Government Direction/ Court direction.”

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Thereafter, the 1^st respondent had issued Ext.R-2(b) proceedings dated 21.5.2015, whereby the 2^nd respondent Corporation was directed to prepare rank list to fill up the vacancies and to absorb the 14 award holders and to fill up the existing vacancies from the rank list agreed to by the Government. Anx.R-2(b) proceedings of the 1^st respondent Government reads as follows:

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W.P.(C).23553/16&C.C. - : 6 :-

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“Sub:- Agriculture Department Kerala State Warehousing Corporation - Irregularities in the appointment of Class IV Grade II during Feb. 2009. - Reg.

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Ref:- Letter No.KSWC/Chn/Govt. 2014-15 dated 27/05/ 2014, 13/11/2014 from the Chairman, Kerala State Warehousing Corporation.

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I am to invite your attention to the reference cited and to inform you that the suggestion of Chairman, Kerala State Warehousing Corporation regarding the reinstatement of Class IV employees as per award of Labour Court, for preparing rank list to fill up the vacancies and to absorb the 14 award holders and to fill up the existing vacancies from the rank list is agreed to by Government.”

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The petitioners would contend that the benefit of Anx.R-2(b) should go, not only to the 14 award holders, but also to all other employees in the rank list, who are otherwise eligible so as to fill up the existing vacancies.

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It is also admitted in para 5 of the above statement filed by the 2^nd respondent Corporation that the Board of Directors of the 2^nd respondent Corporation had considered Anx.R-2(b) Government order and decided to fill up the then existing 56 vacancies from Ext.P-14 rank list as agreed by the Government and it was further decided as per Anx.R-2(c) dated 11.6.2015 to consider all the terminated employees during 2007 for interview irrespective of age bar and appoint those persons as per rules to the existing vacancies in accordance with the recommendations of the interview committee. It is pointed out in para 6 of the said statement that the

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W.P.(C).23553/16&C.C. - : 7 :-

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2^nd respondent Corporation thus conducted interview on 9.7.2015 and 13.9.2015 and prepared Anx.R-2(d) list so as to fill up vacancies of Class IV Grade II employees. That out of 106 candidates called for interview, 83 attended the interview and from this, 47 were appointed to the post and 9 vacancies remained vacant due to non-availability of eligible candidates in the respective reservation categories. According to the 2^nd respondent, Anx.R-2(b) Government order and Anx.R-2(c) only order filling up of the existing vacancies (viz., 56 in number). It is further pointed out in para 7 of the said statement that the scope for appointment

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was limited to the vacancies that existed at the time of the Government order and this cannot be extended from time to time and that the petitioners herein are not coming under the reservation category in terms of Anxs.R-2(b) and R-2(c) and it is accordingly prayed that the Writ Petitions may be dismissed, etc.

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Heard Sri.B.Pramod, learned counsel for the petitioners appearing in both the Writ Petitions as well as the learned Government Pleader appearing for the 1^st respondent State Government and Sri.M.Gopikrishnan Nambiar, learned Standing Counsel appearing for the Kerala State Warehousing Corporation

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W.P.(C).23553/16&C.C. - : 8 :-

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appearing for respondents 2 and 3.

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Sri.B.Pramod, learned counsel for the writ petitioners pointed out that it is beyond dispute that 106 candidates were called for the interview as stated in para 6 of the statement and further that it is pursuant to such selection that Ext.P-14 rank list was prepared consisting of 83 candidates including the 13 petitioners herein and that it is from Ext.P-14 rank list that Anx.R-2(d) select list was prepared for filling up 56 vacancies, in which 9 candidates in the respective reservation category communities were not available and a bare perusal of Anx.R-2(d) select list would also show that the said list of selectees/appointees actually contained only 45 persons and that 9 posts are left vacant due to absence of eligible candidates in the reserved community. The learned counsel for the petitioners would further contend that the decision of the State Government in Anx.R-2(b) is confined not merely to the 14 award holders, but also all other eligible persons so as to fill up the existing vacancies from the rank list as agreed to by the Government. He would further contend that even going by the pleadings of the 2^nd respondent, they do not have a case that the validity of currency of Ext.P-14 has already expired, etc. and

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W.P.(C).23553/16&C.C. - : 9 :-

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that therefore going by the mandate of Anx.R-2(b) directives of the State Government Ext.P-14 is to be utilised for filling up all vacancies that are available and that such availability is not merely confined to those vacancies which are available at the time of issuance of Anx.R-2(b) dated 21.5.2015, etc.

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In view of these aspects of the matter, this Court is of the considered opinion that since the matter requires a proper interpretation of the directives issued by the respondents at Anxs.R-2(b) and R-2(c), it is only better in the interest of justice to remit the matter for consideration and determination by the competent authority of the 1^st respondent State Government in consultation with the 2^nd respondent Corporation. Accordingly, it is ordered that it is for the petitioners to submit requisite representation in that regard before the 1^st respondent Government with copy to the 2^nd respondent and it is for the petitioners to urge all their necessary submissions and contentions. On receipt of such representation, the competent authority of the 1^st respondent will afford an opportunity of being heard to an authorised representative nominated on behalf of the petitioners and after such hearing, the Government will render a considered decision thereon after

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W.P.(C).23553/16&C.C. - : 10 :-

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consultation with the 2^nd respondent Corporation. The remarks of the 2^nd respondent Corporation may also be secured by the 1^st respondent Government and a copy of the same may also be made available to the representative of the petitioners to enable them to deal with such submissions of the 2^nd respondent and this formality should be completed before final decision is rendered by the 1^st respondent and thereafter, the 1^st respondent will render a considered decision on the matters as stated above, within a period of two months from the date of submission of the representation along with a certified copy of this judgment. The said decision shall be duly communicated to the petitioners and the 2^nd respondent Corporation immediately thereafter. Until a decision is taken by the 1^st respondent State Government as stated above, it is ordered for the purpose of preservation of the subject matter of the lis, that status quo as on today as regards the filling up of the vacancies, which are claimed by the petitioners, may be maintained by the 2^nd respondent.

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With these observations and directions, the Writ Petitions (Civil) stand finally disposed of.

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Sd/sdk+ ALEXANDER THOMAS, JUDGE

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///True Copy///

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P.S. to Judge

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W.P.(C).23553/16&C.C. - : 11 :-

R.Shajikumar v. State of Kerala

Case brief

What is this about?

What did the court decide?

R.Shajikumar v. State of Kerala

Case brief

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